Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Hi All

In regard to a Securitized Mortgage Note.

How could a lawful foreclosure occur against a mortgage whose NOTE has been Securitized? Who is the actual Damaged Party, who has Standing to State a Claim?

Thoughts and Opinions Please.

TIA

Best regards

Acesfull


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Bill
acesfull wrote:
Hi All

In regard to a Securitized Mortgage Note.

How could a lawful foreclosure occur against a mortgage whose NOTE has been Securitized? Who is the actual Damaged Party, who has Standing to State a Claim?

Thoughts and Opinions Please.

TIA

Best regards

Acesfull




I'm not an attorney and this isn't legal advice............

The party that has standing and who was the "actual damaged party" is the trust that the note and mortgage were sold to.  These trusts have several investors.  Part of the agreement that is agreed to when you invest in one of these trusts is that you personally don't really have any authority in regards to the trusts assets.  When the trust is formed a 3rd party is appointed to handle the payments, paperwork, and manage the assets.  

This is all legal and mortgages have been used to back some kind of bond or certificate for decades.  

The trustee acting for the trust has standing.

The trustee is acting as the agent for the "actual damaged party" to protect their interest.

The problem really arises when the banks/originators/depositors decided to take shortcuts in order to make more money.  This includes using MERS.  Because of these shortcuts the trustee can have a variety of proof problems.  DO NOT MAKE THE MISTAKE of thinking that your note did not make it to these trusts.  If pushed far enough you are going to find that MOST of these trusts DO own your note and it was legally endorsed and transferred to them as required.  These foreclosure actions are NOT being prosecuted by the trustee, they are being prosecuted by the Servicers.  The Servicers do NOT have access to the trust documents.  It is far easier to fabricate documents (such as assignments) and lie than to go to the trustee and get the REAL documents.  The real successful strategy is to use good, effective, discovery to box the Plaintiff into a position then show the fraud involved.  If you bring all the deficiencies to the Plaintiff's attention too soon, they WILL get the documents needed to "fix" the problems.  If you resist the urge to run into the court and cry about fraud, robo signing, ect... and get some admissible evidence through discovery, the perjury and fraud becomes very clear.
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The defense strategy many foreclosure defense lawyers use is: My client's loan is not in the Trust who is trying to foreclose. Prove to us that the loan is really in the Trust. Chances are the loan is sold and resold many times and it is no long in the Trust. Read this thread:

 

http://ssgoldstar.websitetoolbox.com/post/THE-PHANTOM-CLIENT-Are-Your-Clients-Aware-That-You-Are-Representing-Them-Here-Today-Do-5553016?highlight=phantom

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Hi All

 

Hi Bill

 

Hi Ann

 

Thank you for your replies.

 

Since mortgages are securities or a type of security. I was wondering just what type security instrument a mortgage is? Is it?

 

A- Mortgage- Backed Security

 

B- Asset- Backed Security

 

c- Pass- Through Security

 

D- Real-Security

 

E- Stripped Mortgage Back Security

 

F- Purchase- Money Security Interest

 

G- Security Interest

 

Is the answer ALL OF THE ABOVE?

 

According to Black's Law Dictionary all the above Securities have different definitions, however they all seem to be related in some way.

 

Another question. Can a mortgage note or Security instrument be held in two separate type Securities?

 

Example-- US Bank National Association, as Trustee for Asset Backed Securities Corp Home Equity trust, Series XXX Asset Backed Pass-Through Certificates, series XXX

 

According to this example what would be the Security Name that is holding my mortgage/Note in its trust?

 

I narrowed it down to three type securities.

 

1- Mortgage- Backed Security. A pass through security backed by mortgages .

The cash flow from these securities depends on Principle and Interest payments from The Pool Of Mortgages. See Blacklaw 9th pg 1477.

 

2- Asset- Backed security- A debt security( Such as a Bond ) that is secured by assets that have been pooled and secured by the assets in the POOL. ( see blacklaw 9th PG 1476)

 

3- Pass- through Security-

A Security that passes through payments from debtors to investors. Pass-through securities are usu assembled and sold in packages to Investors by private lenders who deduct a service fee before passing the principle and interest payments through to the investors. (see Black Law's 9th pg 1477)

 

TIA for reading. All replies and opinions are most welcome and appreciated.

 

Best regards

 

Acesfull

 

 

 

 

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Want to know when, how and who securitize mortgages at each Bank, go to this link Read these complaints. You will find find many fraud committed by the 17 banks and their fraudulent methods of establishing Trusts. Many foreclosure defense lawyers refer to these complaints for defense strategy.

More details of the complaints of US GOVT. v. 17 BANKS at
 

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Hi All

Hi Ann-- Great post. I didn't see U.S. Bank National on the list.

They must of escaped under the fraud radar, May be I will expose there fraud in my case?  LOL

TIA

Best regards

Acesfull
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From Max Gardner Esq. and Kevin Byer
Twenty Reasons to Request Pooling Servicing Agreement (PSA)

Every time I file a civil action against a mortgage servicer the very first document I want is a copy of the “Pooling and Servicing Agreement.” This is the legal document that creates the securitized trust of mortgage loans and also strictly provides for the duties of all entities who are assigned the responsiblity of servicing loans for the Trust.

For all “public placements” or “public offerings,” the Pooling and Servicing Agreement is always filed on Form 8-K with the Securities and Exchange Commission. All such documents can be found by conducting a search of the SEC’s website through an internal search engine known as “Edgar.” But, what is a PSA? Why do I want to see it? What can be found in the PSA? Kevin Byers, a forensic accountant, who works with me on these cases, has assisted me in developing the following list of reasons why any consumer must have the PSA. The reasons are as follows:

Pooling and Servicing Agreements (PSA)Top Twenty Reasons to Request ProductionKevin Byers and O. Max Gardner III

In no particular order, these are some of reasons you need to request through formal discovery in any mortgage-related case the PSA Agreement and why it is relevant:

1. It is a contractual document naming the parties to any given securitization, important for standing issues. The document will list the Sponsor, the Trustee for the Securitized Trust, the Master Servicer, and all primary and secondary servicers.

2. It provides address for all necessary parties including “notice” addresses for the service of legal process.

3. It outlines the specific duties of the Servicer and/or the Master Servicer as well as the Trustee on behalf of a respective trust.

4. It contains the representations and warranties of all parties to the agreement, including the Servicer and/or Master Servicer.

5. It includes all representations provided by the Depositor of the loans into the trust as the same relate to important consumer protection issues related to the underwriting and origination of the loan, such as conformity with anti-predatory lending laws, full-file credit reporting, title insurance coverage, and validity and content of individual loan files.

6. It gives the conditions under which a prepayment penalty may be waived or modified by the Servicer and/or Master Servicer. 7. It oftentimes will outline specific loss mitigation and foreclosure avoidance measures available to the Servicer, including, for example, forbearance and loan modification, principal reductions, interest reductions and interest changes.

8. It defines a “defective mortgage loan” and describes the circumstances and process by which the lender must repurchase a loan.

9. It establishes the rights of the Trustee under the Trust to force the Depositor/Originator of any loan to repurchase a loan under the recourse provisions. 10. It describes the specific process by which a delinquent loan can be charged off and the subsequent servicing party and procedures that apply to such charged-off loan.

11. It provides guidelines on loan-level advances that must be paid by the servicer.

12. It provides details regarding the mechanics of how the Servicer must go about foreclosing on property, what documents need to be requested and/or recorded and what authorizations need to be granted to foreclose, and in whose name the foreclosure must be filed.

13. It provides guidance on the fees a Servicer may retain as compensation in the administration of the loans, for example, NSF fees, late fees, loan modification or assumption fees.

14. It will contain the Mortgage Loan Schedule, important to verify the ownership of the loan on behalf of the Trust.

15. It details the requirements for mortgage assignments and when these will or will not be recorded and the implications of the failure to record such assignments. 16. It details the specific loan documents contained in each loan file that will be delivered to the Trustee or Document Custodian on behalf of the trust, establishing who holds the original Note and where it may be found.

17. It describes the credit enhancements that have been deployed to enhance the rating of the most secure certificates of investment in the Trust.

18. It provides rules and procedures for the rights of the Master Servicer or the Primary Servicer to accept a deed-in-lieu of foreclosure or a short sale of the property so as to avoid a foreclosure.

19. It describes the rights the Originator/Depositor may retain the Residual Value of the Trust and the extent to which the residuals may be used as credit enhancements.

20. It will name a default servicer and describe when a loan is considered to be in default and outline the process for the transfer of servicing rights

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Question – please respond – slightly off topic (sorry)!

Can a loan that has been Charged off by Litton on 4/2010 still remain in Fremont Home Loan Trust 2005-E?

New servicer Ocwen sent a response letter to my QWR and they state the loan was charged off by Litton on 4/2010 but, I am still liable for the repayment of the debt.
I have reviewed the PSA and this loan was in default durring the first two years of the trust and many years after too. Is it possible for such a loan to remain in the trust?
I am directed to ask my servicer who holds my deed but is it possible my servicer is WRONG?

In the same response letter Ocwen states – (because I requested this information in my QWR) – “the beneficial holder of the loan is HSBC Bank USA NA as Trustee under the pooling and servicing agreement dated as of Dec. 1, 2005, Fremont Home Loan 2005-E”.

I have a loan mod from Fremont dated 2007 on the loan mod, it is Fremont and not HSBC listed as the “Lender” so this would mean the loan was not in the trust by 2007 – RIGHT?

Is it at all possible a loan discharged by the servicer could still remain in the trust?

Is it time to get a lawyer? I have the loan numbers assigned to both of my loans in the trust – I think the first has been removed at some point too – I live in GA and get foreclosure sale notices published and then canceled and have been delinquent for 10 months at times.

If not in the trust – then Ocwen who is servicing for HSBC would have no reason to service this loan?

PS the loan was in default when transfered to Litton and also when transfered to Ocwen – so per FDCPA rules the mortgage servicers are acting as a debt collector and can be fined if they have no claim to foreclose on my property – right?

Any insight would be greatly appreciated!!!

Thanks to all and I enjoy reading the post and comments!!! VERY INFORMATIVE!

Jen in GA!

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